Makueni County Government v National Land Commission & 6 others (Environment and Land Appeal E036 of 2023) [2024] KEELC 3666 (KLR)
The bottom line
#Makueni County failed to pause National Land Commission boundary hearings because it could not show evidence of real harm if those hearings continued.
What this practically means
#Executive summary
#Key legal issues
#Whether the requirements for a stay of proceedings pending appeal under Order 42 Rule 6 were met
The application failed because substantial loss was not demonstrated, notwithstanding that the appeal may be arguable
The court held that an application under Order 42 Rule 6 invokes judicial discretion to be exercised judiciously. The applicant had to show substantial loss if stay was not granted. It found no empirical evidence that Makueni would suffer substantial loss if the NLC continued with hearings and investigations directed towards preparing the report ordered by the court. Relying on Kenya Shell Ltd v Benjamin Karuga Kibiru, substantial loss is the cornerstone of a stay. The appeal could be heard without interfering with NLC proceedings, which could be set aside or reviewed later if unfounded.
Whether the court should pronounce on the jurisdiction of the NLC at this interlocutory stage
The court declined to determine the jurisdictional question in depth, deeming it prejudicial to the pending appeal
The court recognised that the jurisdiction of the NLC is the pith and substance of the pending appeal and chose to be circumspect, handling the issue only 'from a thin membrane'. It noted its earlier ruling of 23rd March 2022 directing the petitioner to lodge a complaint with the NLC, which is mandated under Article 67(1)(e) of the Constitution to investigate present or historical land injustices and recommend redress, and stated it still awaits the NLC report within the stipulated timeframe.
Whether the appeal raised arguable issues warranting holding matters in abeyance
The court accepted the appeal was arguable and weighty but directed the appeal itself be disposed of by written submissions
Despite declining the stay, the court acknowledged the appeal raised arguable and weighty issues and held the question of entitlement to reliefs in abeyance pending the appeal. It directed expedition: the appeal to be disposed of by written submissions with 14 days for each side, and judgment reserved for 22nd July 2024.
Legal principles established
#- An applicant for stay of proceedings pending appeal must demonstrate substantial loss; without evidence of substantial loss a stay will rarely be granted
Court orders
#- 1.That the Notice of Motion application dated 24th November, 2023 be and is hereby partially allowed
- 2.That the prayers for stay of execution of the proceedings before the NLC pending the hearing of the appeal of its decision of 5th October, 2023 be and is hereby declined
- 3.That the scheduled appeal be disposed of by way of written submissions, with the 1st to 7th Respondents granted 14 days to file and serve written submissions
- 4.The Appellant granted 14 days to file and serve written submissions
- 5.The Court reserves a date to deliver its Judgement on the Appeal on 22nd July, 2024
- 6.That each party to bear their own costs
- On appeal from
- National Land Commission
- NLC/HLI/3670/2021
- Jurisdiction invoked
- Section 13 of the Environment and Land Court Act, No. 19 of 2011 read with Article 162(2)(b) of the Constitution; application under Order 42 Rule 6 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makueni County Government v National Land Commission & 6 others (Environment and Land Appeal E036 of 2023) [2024] KEELC 3666 (KLR)", Case Analysis (2024). NLC/HLI/3670/2021 (appeal from NLC decision; ELC Petition No. 33 of 2021 Mombasa relates). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3666/eng@2024-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.